Opinion of the Court.

rights of natural persons to the extent acquired at their creation, they are entitled to protection in those rights to the extent as all natural persons are in their rights. The same duties to the public may be required and enforced, but no greater or different burthens can be imposed than may be on individuals.

Suppose a natural person had the right of way across his neighbor's grounds, and afterwards the city were to locate and open a street across his right of way, does any one suppose the owner of the right of way could be compelled, by legislative enactment, or an ordinance in pursuance thereto, to construct the crossing of the street at his own expense, even if his use of the right of way would render the use of the street impracticable or dangerous until the approaches should be constructed? We presume no one would contend for the power in that case. And why? Because it would impose an unequal and unjust public burthen on the owner of the right of way that, in spirit, would be the taking of private property for public use without just compensation, which must be paid under the constitution.

If, then, such burthens can not be imposed upon a natural person, why, or by what reasonable means, can it be required of an artificial person? When brought into existence, these bodies are created persons so far as to become amenable to the same burthens in the support of the government, by taxes and the like, as natural persons coming into and subject to the government. But they are only liable to the performance of such duties to the same extent, on the same terms and conditions as natural persons. The legislature can exact of them no greater or higher duties than it can of natural persons, unless the right is reserved in their charters, or by some law that enters into their charters. One of the fundamental principles upon which all good government is constructed and is administered, is equality of burthens and protection. Any other principle is unjust and oppressive.

Opinion of the Court.

In the cases of The City of Chicago v. Larned, 34 Ill. 203, The City of Ottawa v. Spencer, 40 Ill. 211, and Bedard v. Hall, 44 Ill. 91, it was held, that the whole burthen of paving a street, laying a sidewalk, or improving a street upon the frontage of the property adjoining the improvement, is repugnant to the constitution, and that, in making such improvements, the benefits must be assessed upon all property enhanced in value thereby, and imposed on the same to the extent of the benefits, if required, or the improvement must be made by general tax.

Now, here is an improvement of a street that was required, and the city endeavored to impose the whole burthen upon the railroad company. It had never agreed to make this improvement. The duty was not imposed upon the company by their charter, or, so far as we can see, by any other law then in existence; and this being true, the General Assembly had no more power to fix this burthen on the company than to impose a similar burthen upon an individual, which we have seen, by the cases to which reference has been made, can not be constitutionally done. The principle announced in these cases is conclusive of this question.

Whether the right of way of the company is to be considered so far public property that it need not be again condemned where a street or highway crosses it, is not presented by this record. Nor is the question presented whether, the city having made the improvement, the railroad company may be required, as a police regulation, to keep it repaired, and hence these questions are not discussed.

But the court below erred in rendering judgment in favor of appellee, and it must be reversed.

Judgment reversed.

Mr. JUSTICE SCOTT took no part in this decision.

Opinion of the Court.

GEORGE PINCKARD

V.

GEORGE MILMINE et al.

1. ESTOPPEL-by deed. A party claiming under a deed can not be per. mitted to deny any fact admitted to exist by the recitals therein. Whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or to defend the possession of such rights.

2. SAME to deny name of grantee in deed. The fact that one of the grantees or mortgagees in a deed or mortgage is described by a wrong name, will not invest such party with the right to sue in a fictitious name; and if he sues, not in his real name, but in the name as stated in the deed, the grantor or mortgagor will not be estopped from pleading the misnomer in abatement.

3. MISNOMER—may be avoided by averment and proof. Where a contract or deed is executed to a party by a wrong name, he must, nevertheless, sue in his proper name, and may aver in his declaration that the defendant made the deed or contract to him by the name mentioned therein.

WRIT OF ERROR to the Circuit Court of Piatt county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. REED & BARRINGER, and Messrs. CREA & EWING, for the appellant.

Messrs. LODGE & HUSTON, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was an action of ejectment, brought by George Milmine and Edwin C. Bodman against George Pinckard, to recover the lands described in the declaration, which premises they claimed "in fee simple, as mortgagees of Charles Fisher, for condition broken."

Defendant filed a plea in abatement, in which he averred the "said Edwin C. Bodman," one of the plaintiffs, was named Edward C. Bodman, and not Edwin C. Bodman. The plea was, in all respects, formal; was subscribed and sworn to by defendant.

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Plaintiffs replied, they claimed possession of the property in the declaration mentioned under a mortgage made by Charles Fisher to plaintiffs, by the names of Edwin C. Bodman and George Milmine, the condition of which mortgage had been broken, and that defendant holds possession of the same premises as tenant of Robert Fisher, who bought the same of Charles Fisher after the execution of the mortgage and subject to the lien thereof, and hence they aver defendant is estopped to deny the name of plaintiff, Bodman, as stated in the mortgage. A general demurrer was interposed to this replication, which was, by the court, overruled, and the defendant electing to stand by his demurrer, judgment was rendered for the plaintiffs.

The demurrer ought to have been sustained.

We recognize the doctrine of estoppel by the recitals in a deed, and that a party claiming under such deed can not be permitted to deny any fact admitted to exist by such recitals, as that doctrine is declared in Byrne v. Morehouse et al. 22 Ill. 603, and Riggs v. Cook, 4 Gilm. 336. The principle of these cases is, that whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or defend the possession of such rights.

But what fact did the grantor in this case admit by the recitals in the mortgage? Simply that he conveyed the land to plaintiffs, but to one of them by a wrong name. This fact the grantor and all persons claiming under him, however remote, are estopped to deny. So far as they are concerned, it must stand as an incontrovertible fact. But can it be that this admission in the mortgage, however conclusive as against the grantor and all privies in estate, invests plaintiff with the right to sue in courts of law in a fictitious name? There is nothing in the mortgage that admits plaintiff's right to sue in an unreal name. Parties can only sue in their true names. Where the contract or deed is executed to them by a wrong name, nevertheless plaintiffs must sue in their proper names, and may aver in the declaration that defendants made the

Syllabus.

deed or contract by the name mentioned. Board of Education v. Greenebaum, 39 Ill. 609.

For the error of the court in overruling the demurrer, the judgment will be reversed and the cause remanded.

Judgment reversed.

GILBERT J. BURR et al.

V.

THE CITY OF CARBONDALE,

1. CONSTITUTIONAL LAW-locating State institutions in locality bidding the highest. The act of April 19, 1869, entitled "An act to authorize cities and towns in Southern Illinois to issue bonds in aid of the Southern Illinois University," taken in connection with the charter of the University, which makes the location of that institution to depend upon the aid and inducements which may be offered in the different localities, is not liable to any constitutional objection, although such legislation is not calculated to advance the credit and renown of the State, and in the judgment of the court, is unwise and impolitic.

2. SAME-taxation of one locality more than its just share in a State expenditure. Where a law authorized the imposition of a tax in a county, without any vote of the people, to aid the State in establishing a State institution therein, and the taxable property of such county was also re quired to bear its proportion of taxation equally with that in the other counties as to the residue of the cost, it was held, that the first tax was compulsory taxation under the general power to tax, and in violation of the constitutional provision requiring such taxation to be equal and uniform.

3. SAME-whether a tax voted for the location of a State institution of learning is for a corporate purpose. Where the people of a city, under the authority of a special act of the legislature, voted that the city should donate $100,000 in aid of the Southern Illinois Normal University in the event it should be located in such city, and it was so located, and the bonds regularly issued and put in circulation, it was held, on bill filed by the city to enjoin the collection of taxes assessed to pay interest on the same, that such debt was incurred for a corporate purpose within the meaning of the constitutional provision allowing taxation for corporate purposes, and